Director of Public Prosecutions v Friel
[2016] VCC 1727
•18 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01471
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE MATTHEW FRIEL |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 18 November 2016 | |
CASE MAY BE CITED AS: | DPP v Friel | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1727 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Harper Mr H. Tighe | Solicitor for Office of Public Prosecutions |
| For the Accused | Ms J. Swiney Ms R. Waters | Mike Wardell |
HIS HONOUR:
1 Jake Friel, on 8 November 2016, you pleaded guilty to Indictment G10809212 containing twenty-one charges, being eight charges of obtaining property by deception, twelve charges of attempting to obtain property by deception, and one charge of possession of identification information. You also pleaded guilty to a number of related summary offences, being driving a motor vehicle during a period of disqualification (Charge 1), proceeding through a red traffic light (Charge 2), fail to produce a permit to drive and state a false name and address (Charge 3), and commit an indictable offence whilst on bail being, Charge 21 on the indictment, (Charge 4).
2 You admitted your criminal record.
3 The maximum penalty for obtaining property by deception is 10 years’ imprisonment. However, Charges 2 and 13 on the indictment are continuing criminal enterprise offences, and the maximum penalty for these offences is 20 years’ imprisonment.
4 The maximum penalty for attempting to obtain property by deception is five years’ imprisonment. However, Charges 7 and 20 are continuing criminal enterprise offences, the maximum penalty for these offences is 10 years’ imprisonment.
5 The maximum penalty for possession of identification information is three years’ imprisonment.
6 In respect to the summary offences for Charge 1, the maximum penalty in your case is 240 penalty units or two years’ imprisonment. For Charge 2, 10 penalty units; for Charge 3, five penalty units; and for Charge 4, 30 penalty units or three months’ imprisonment.
7 Save for Charge 1, which was committed on 25 July 2015, the balance of your offending was committed between 18 November 2015 and 8 February 2016, a period of approximately 11 weeks. Charges 2 to 21 and the related summary offences were committed by you while you were serving a community corrections order, and this fact is an aggravating feature of that offending. On 28 December 2015, you were intercepted by police and charged with Charge 15 on the indictment, as well as the related summary offences, and you were bailed. Charges 16 to 21 therefore were committed whilst you were on bail. This is an additional aggravating feature of that offending.
8 Tendered as Exhibit A on the plea was the prosecution plea opening which was read aloud in court. It is a comprehensive document, and I will not repeat its contents, save to say, in respect to all of the charges on the indictment, save Charge 15, that by the use of false identification papers, including drivers’ licences bearing your photograph but otherwise containing false details, and false payslips, you obtained finance and thereafter property, being three Harley-Davidson motorcycles, a Mercedes-Benz motorcar, cash and jewellery, valued at $256,158.29 in total. You attempted to obtain two Harley-Davidson motorcycles, mobile phones, and cash via loans, to the value of $409,023.
9 In respect to Charge 15, and the related summary offences, you were intercepted by police and found in possession of four Victorian drivers’ licences in names other than your own, some of them bearing your photograph, three of which had been used in your offending prior to the date of your interception.
10 Of the property that you obtained, only the Mercedes-Benz motor vehicle was recovered.
11 You were arrested for a second time on 15 February 2016 and have remained in custody since that date.
12 Your plea is to a settled indictment and must be taken as a plea entered at the earliest opportunity. Accordingly, you are entitled to the benefits that flow from your plea, being its utilitarian value and that it is some evidence of your remorse. This prosecution arises out of a number of police investigations into your conduct and the consequent briefs of evidence. You actively facilitated the consolidation of all those briefs of evidence into the present indictment, and this must be taken into account in your favour.
13 During the course of the various investigations, you were interviewed under caution on three occasions, and in all save the last interview, you made admissions. Your conduct in this respect operates in your favour.
14 You have relevant prior convictions for dishonesty offences, offences under the Bail Act, and motor vehicle offences that resulted in you receiving a community corrections order from the Magistrates’ Court at Sunshine on 30 July 2015.
15 You are twenty-six years of age and you are a concreter by trade. You have the support of your parents, and in particular, your mother. Your offending is rooted in your abuse of the drug ice. Your drug abuse strained your relationship with your mother to such an extent that she was obliged to obtain a Family Violence Intervention Order against you because of your erratic and violent behaviour caused by your addiction.
16 It was put on your plea that your offending was motivated by a need to repay drug debts to persons who were euphemistically described during the course of the plea as “motorcycle enthusiasts”. While both your abuse of ice and your consequent drug debts explain why you offended, they do not mitigate your offending
17 Tendered as Exhibit 1 on the plea was the report of Bernard Healey, psychologist, dated 6 August 2016. Mr Healey saw you at the Port Phillip Prison. During your time on remand, you have undergone drug and alcohol courses and are now drug-free. You have come to realise the deleterious effects of ice on you personally, and the damage that it caused to your relationship with your family, and in particular your mother. You are now reconciled to your mother, and she visits you on a weekly basis in prison.
18 As to your background, you spent the first eleven years of your life living at Ocean Grove, until your parents separated. Thereafter, you resided with your father for four years, but at the age of fifteen years or so, you went to live with your mother, first in Ocean Grove then in Geelong, and ultimately in Essendon.
19 You repeated Year 10 at school, and did not complete that year, but through your father, you took up work with a concreter and have worked at that trade until you were remanded in custody. You will be able to return to your trade upon your release from prison. You will also be able to return to your mother’s home in Essendon, and so long as you remain drug-free, your prospects for rehabilitation are good. Whether you will be able to remain drug-free is yet to be seen.
20 Mr Healey’s report reveals that you are a person of below average intelligence, with a vulnerability for substance abuse.
21 Whilst in prison, you have undertaken courses to assist in your rehabilitation, and have referrals for other like courses which you hope to commence after being sentenced. (See Exhibit 3).
22 Of note is the fact that you suffer from Crohn’s disease, an inflammatory disease of the bowel. (See Exhibit 2). In your case, the disease is treated by the use of corticosteroids and control of diet, the latter proving more difficult for you in prison than it would if you were at liberty.
23 Ms Swiney of counsel, who appeared on your behalf, submitted that a period of imprisonment, when combined with a community correction order, was the appropriate sentence in your particular circumstances being; an early plea of guilty, your facilitation of the consolidation of the various prosecutions, your efforts to become drug free while on remand, your reconciliation with your mother, your willingness to undertake courses in prison, your state of health and your prospects for rehabilitation. I must and do take all these matters into account.
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Ms Harper, counsel for the Crown, submitted that an immediate term of imprisonment that involved a head sentence and a non-parole period was the only appropriate sentence, because your offending was persistent, planned, and sophisticated, involving as it did, false documents including false drivers’ licences bearing your photograph. As well, there were the aggravating features of your offending which have already been referred to in these reasons.
Ms Harper submitted that the principles of general and specific deterrence, as well as public denunciation and the protection of the community from you, were important aspects in the exercise of my sentencing discretion. I note that protection of the community was not used in the sense of its primacy in the sentencing of serious offenders under Part 2A of the Sentencing Act, but in its general application pursuant to s.5 of the Act.
25 Whilst taking into account matters personal to you, the sentencing factors relied upon by the crown must result in a term of imprisonment being imposed on you, one which results in a head sentence, together with the imposition of a non-parole period.
26 By these sentences, I must denounce your conduct. I must punish you, and deter you and others from committing crimes of the same or similar kind. I must look to your rehabilitation. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce sentences which reflect and promote the purposes of sentencing in a manner appropriate to you, I sentence you as follows:
· On Charge 1, six months’ imprisonment;
· On Charge 2, 18 months’ imprisonment;
· On Charge 3, six months’ imprisonment;
· On Charge 4, six months’ imprisonment;
· On Charge 5, six months’ imprisonment;
· On Charge 6, six months’ imprisonment;
· On Charge 7, nine months’ imprisonment;
· On Charge 8, eight months’ imprisonment;
· On Charge 9, six months’ imprisonment;
· On Charge 10, 12 months’ imprisonment;
· On Charge 11, 12 months’ imprisonment;
· On Charge 12, 12 months’ imprisonment;
· On Charge 13, 18 months’ imprisonment;
· On Charge 14, six months’ imprisonment;
· On Charge 15, six months’ imprisonment;
· On Charge 16, six months’ imprisonment;
· On Charge 17, 12 months’ imprisonment;
· On Charge 18, six months’ imprisonment;
· On Charge 19, six months’ imprisonment;
· On Charge 20, nine months’ imprisonment;
· On Charge 21, six months’ imprisonment.
27 I order that one month of each of the sentences imposed on Charges 1, 3, 4, 5, 6, 9, 14, 15, 16, 18, 19 and 21, together with two months of the sentences imposed on Charges 7, 8 and 20, as well as three months of the sentences imposed on Charges 10, 11, 12 and 17, together with four months of the sentence imposed on Charge 13, be served cumulatively upon each other and on the sentence imposed on Charge 2. This results in a total effective sentence of four years and four months’ imprisonment, and I set a period of three years’ imprisonment which you must serve before you will become eligible for parole.
28 In respect to the summary offences:
29 On Charge 1, you are convicted and sentenced to one month’s imprisonment.
30 On Charge 2, you are convicted and fined $200.
31 On Charge 3, you are convicted and fined $150.
32 On Charge 4, you are convicted and sentenced to one month’s imprisonment.
33 In respect to the summary offences for which you have been sentenced to a term of imprisonment, these terms of imprisonment are to be served concurrently with the sentences imposed on the indictment.
34 I declare that you have spent 277 days by way of pre-sentence detention, not including today.
35 I declare that in respect to Charges 2, 7, 13 and 20, you have been sentenced as a continuing criminal enterprise offender, and I direct that the fact that you have been so sentenced, be entered in the records of the court.
36 I fix a stay of three months for the payment of the fines
37 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to six years’ imprisonment with a non-parole period of four year’s imprisonment.
38 Now I have had my mathematics checked a couple of times, but I would be indebted to counsel if they recheck it and take your time please. Do you agree Ms Waters?
39 MS WATERS: Yes, Your Honour. I've calculated 52 months in total.
40 HIS HONOUR: Correct.
41 MR TIGHE: That's correct, Your Honour.
42 HIS HONOUR: Thank you very much. All right, now the Crown made application for a forensic sample to which you consented and I have made an order for a scraping from your mouth. The scraping from your mouth is what is known as a buccal swab and it is simply what it says, a scraping from your mouth. I have made this order because of the seriousness of the circumstances of the offending warrant making the order. Your prior convictions warrant making the order. The order is by consent and the granting of the order is in the public interest.
43 I must inform you, that if at the time of request you do not consent to the taking of a mouth scraping, under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be undertaken. I hand down four copies of that order. Are there any other matters to be attended to?
44 MR TIGHE: No thank you, Your Honour.
45 HIS HONOUR: Would you remove the prisoner please and we will stand down until 10.30.
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